This briefing summarises only the proposals of most relevance and significance to local government. It also provides the LGA’s initial reaction to the proposals along with our policy messages, which may necessarily evolve as discussions on the proposals continue.
Introduction
Please note that this briefing was amended on 18 February 2021.
On 11 February, the Department of Health and Social Care (DHSC) published the legislative proposals for a Health and Care Bill. The proposals in the white paper are a combination of:
- Proposals developed by NHS England (NHSE) to support the implementation of the NHS Long Term Plan (and which are the main focus of the document).
- Additional proposals that relate to public health, social care, and quality and safety matters, which require primary legislation
The White Paper emphasises that the legislative proposals should be seen in the context of broader current and planned reforms to the NHS, social care, public health and mental health. It commits to bringing forward detailed proposals for reform on these key policy areas later this year.
This briefing summarises only the proposals of most relevance and significance to local government. It also provides the LGA’s initial reaction to the proposals along with our policy messages, which may necessarily evolve as discussions on the proposals continue. It does not summarise or comment on proposals that are primarily focused on the NHS.
Summary of key LGA messages
- The White Paper provides a promising base on which to build a more collaborative culture. It sets out a clear direction of travel for enabling NHS organisations to work more effectively together, and for the NHS to work as an equal partner with local government. The critical role of local government to the health and wellbeing of our communities has been a fundamental LGA lobbying and influencing message.
- We are therefore pleased that the Government has acted on local government’s call for collaboration to achieve two linked but distinct objectives: integration within the NHS to join up care and support; and equal partnership between the NHS, local government and other partners to both address the wider determinants of health and deliver better and more coordinated health and care services for people.
- We will continue to work with Government to ensure there is clarity regarding the respective roles and responsibilities of the proposed ICS NHS Statutory Bodies and the ICS Health and Care Partnerships, including how they: relate to health and wellbeing boards and integrated activity at local level; and support local leaders in developing arrangements that work best for local areas. Any future accountability mechanisms will need to build on and enhance existing local democratic accountability, not bypass or undermine it. It is imperative that local government remains directly accountable to our residents.
- We welcome the renewed focus on the importance of the local government footprint, particularly:
- Recognition that this is the place at which real change happens
- The commitment that existing local partnerships and democratic structures should be based on local government place
- The expectation that integrated care systems (ICSs) will delegate functions to place-level partnerships.
- We are keen to work with NHSE and DHSC to ensure that the principle of subsidiarity is put into practice and hard-wired into the way ICSs, NHSE, councils and DHSC work with places, building from the bottom up.
- Since the transfer of public health to councils in 2013, local government has proved that public health is more effective and appropriate to local health challenges when it is locally led. Locally led public health teams have played a vital role in responding to the pandemic. Furthermore, local public health leaders have a crucial role to play in ensuring that local strategies for health and wellbeing have the promotion of health, wellbeing, independence and resilience at the core. We are concerned about the proposal to create a power for the Secretary of State for Health and Social Care to require NHSE to discharge public health functions will undermine local leadership of prevention and promoting wellbeing. We will seek clear assurance from Government that this will not adversely impact on local government’s public health responsibilities.
- We note that many of the proposals about improvements in data flow relate to those between health and social care, and there is an absence of reference to local authorities’ public health role. We would like to see a commitment to share data with Directors of Public Health and local public health teams as standard practice, to allow them to fulfil their statutory duties. Throughout the COVID-19 pandemic, local government has repeatedly had to make the case for Directors of Public Health to receive data about residents in their areas, and this should not be an afterthought.
- Adult social care has continually demonstrated its value as an essential local public service in its own right over the last year and it is helpful that the white paper acknowledges the pressures facing social care and the need to address its long-term sustainability and reform. However, such acknowledgement only goes so far and it is disappointing that the Government’s immediate priority for social care is to strengthen national oversight of care and support, rather than bring forward its long-awaited wider funding reforms to support people of all ages to live the life they want to lead.
- The Government needs to publish a clear timetable for its wider reform agenda at the earliest opportunity to give reassurance to all those people who draw on and work in social care that there will be no further delays.
- With regard to national oversight of adult social care, we recognise the need for more transparency. We will work with government to ensure that any national arrangements build on existing best practice, are focused on the care and health system as a whole, and are genuinely co-designed with people with lived experience.
Summary of proposals of most relevance to local government
This section highlights the proposals that have most relevance to local government and gives the LGA’s views of them.
The White Paper sets out the case for a new legislative framework to facilitate greater collaboration within the NHS and between the NHS, local government and other partners, and to support the recovery from the pandemic. The primary aim of the NHS is to improve health and wellbeing outcomes, reduce health inequalities, improve services and make best use of limited resources, recognising the increasingly complex needs of many of our population.
Many of these proposals were set out in the NHS’s recommendations to Government to help deliver the aims of the NHS Long Term Plan and have already been the subject of an NHSE consultation. These proposals recognise that the whole health and care system, including local government, has a vital role in addressing the health and wellbeing challenges of our populations. The white paper gives an undertaking that the legislation will support and enable existing NHS and local government partners to build on their partnership arrangements to join up care and support and address the wider determinants of health.
In addition, there are new proposals of relevance to local government on social care and public health. The document reiterates that the reform of social care remains a manifesto commitment and though proposals are not included, they will be brought forward later this year. It also includes a commitment to publish proposals on the design of the public health system
Working together and supporting integration
The legislative proposals seek to facilitate integration within the NHS, between different NHS organisations, and between the NHS and local government (and wider partners) to improve the health and wellbeing of local people.
There is a commitment that the legislation will create a flexible, ‘enabling framework for local partners to build on existing partnerships at place and system levels or, if this hasn’t yet happened, to kickstart this process’. The key factors are: a shared purpose within places and systems; the recognition of diversity and variation of forms and the balance of responsibilities between places and the systems that they are part of; and the realities of the different accountabilities for local government and the NHS. The legislation will enable places and systems to agree their own arrangements that suit their particular circumstances and characteristics.
Integrated Care Systems (ICSs)
In England, Integrated Care Systems (ICSs) will be established as statutory bodies. The ICS NHS Body will be responsible for the day to day running of the ICS, while the ICS Health and Care Partnership will develop a plan to address the system’s health, public health and social care needs. Public and ‘patient voice’ will be important in both bodies. The dual structure recognises that there are two forms of integration that will be enshrined in legislation: integration within the NHS to enable NHS organisations to work together across a system; and integration between the NHS, local authorities and other partners to deliver improved outcomes for health and wellbeing of their populations.
The ICS will be required to establish an ICS Health and Care Partnership, bringing together wider partners across the NHS, social care, public health and wider stakeholders.
The document acknowledges that the creation of two distinct parts of an ICS adds complexity and will require each system to have clear governance and accountability for both parts. There is also recognition that the NHS and local government have different accountabilities. Local government being accountable outwards to local people, and holding local NHS organisations to account through their overview and scrutiny powers and duties. NHS organisations are primarily accountable upwards to the Secretary of State for Health and Social Care through NHSEI. The legislation will recognise and preserve these distinct accountabilities.
We support the creation of a statutory NHS Body to integrate health services in a system and welcome the intention to establish health and Care Partnerships to ensure there is a partnership of equals that can set out plans for improving population health and delivering better and more integrated care and health services The document says that the ICS will set up the partnership and local areas can ‘appoint members and delegate functions as they see fit’. It is not clear whether this is intended to mean that the ICS NHS Body will set up the ICS Health and Care Partnership. Our strong view is that the establishment of the partnership in each system must be a joint responsibility of the NHS body and local councils. We support local flexibility and we are keen to support health and local government leaders to work as equal partners in setting up the ICS Health and Care Partnership. There is a risk that if this is the sole responsibility of the ICS NHS Body, in areas with no track record of collaborative partnerships between the NHS and local government, this will perpetuate the NHS dominance of the ICS Health and Care Partnership. We have many examples of existing effective partnerships and are keen to work with DHSC and NHSE to promote these as examples of good practice.
We welcome the recognition that each ICS will need to agree how the ICS NHS Body and the ICS Health and Care Partnership work together and be held to account through the different accountability mechanisms for local government and the NHS. It will be important for any new national accountability mechanism to build on and enhance existing local democratic accountability, not than bypass or undermine it.
ICS NHS Body
Putting ICS NHS Bodies on a statutory footing will give them decision-making powers and responsibilities for NHS system performance, delivery and sustainability. It will also allow NHS England to have an explicit power to set a financial allocation or other financial objectives at a system level.
The ICS NHS Body will be responsible for the day to day running of the ICS and have specific requirements to develop a plan to meet the health needs of the population within their area, to set the strategic direction of the system and develop a capital plan for NHS providers in their system. The ICSs will be required to meet the system financial objectives which require financial balance to be delivered. However, it will not have the power to direct providers, and providers’ relationships with the Care Quality Commission will remain unchanged.
It will also take on the commissioning functions of CCGs within its boundaries and some of those of NHS England. It will be able to delegate commissioning and functions to place level partnerships and provider collaboratives.
With regard to membership and governance, the Board of the ICS NHS Body will have a unitary board directly accountable for NHS spend and performance, comprising as a minimum a chair, the ICS chief executive, representatives from NHS trusts, general practice, and local authorities. The Board will need to ensure that it has appropriate clinical advice. The chief executive will be the accounting officer for NHS money allocated to the NHS ICS body.
The name of the ICS NHS Body will reflect its geographical location, for example NHS Nottinghamshire or NHS North West London. NHSE will be publishing guidance on the Board of NHS ICS Body, including how chairs and representatives should be appointed.
The NHS ICS Body will take on CCG responsibilities in relation to local authority overview and scrutiny committees.
We support putting ICS NHS bodies on a statutory footing as one way of promoting greater collaboration between NHS organisations and enabling them to focus on shared, system-wide objectives for improving health outcomes, improving care and support and making best use of resources.
ICS Health and Care Partnership
The ICS Health and Care Partnerships' key role will be to develop a plan to address the health, social care and public health needs in its system, to which each ICS NHS Body and local authority will be required to have regard. Membership of the ICS Health and Care Partnership could include representatives of HWBs, local Healthwatch organisations, the voluntary and community sector, social care providers, housing providers and other partners involved in health and wellbeing.
The DHSC identifies that there is potential for the ICS Health and Care Partnership to be a forum for greater coordination and alignment of funding on key issues, and gives a commitment to working with NHSE and the LGA to develop guidance and support in establishing ICS Health and Care Partnerships.
We are pleased that the DHSC has heard and acted on local government’s calls for a wider health and care partnership to promote collaboration and equal partnership beyond the NHS. We strongly welcome the commitment to ensure flexibility for systems to develop their own Heath and Care Partnerships that are built on existing partnerships and which reflect and are appropriate to a system’s unique combination of experience, assets and challenges. Health and Care Partnerships will need to give serious consideration to how they can best serve people in their area and will need to be mindful of what is and could be best delivered at place level and how to build on this.
Many such partnerships are already firmly embedded and making strong progress. We can learn from these areas to promote good practice elsewhere. The LGA is committed to working with DHSC and NHSE to develop a coordinated implementation support offer to help these partnerships to reach their full potential.
Duty to collaborate
There will be a duty to collaborate across the NHS and local government. This will replace two existing duties to cooperate. Additionally, NHS bodies will have a duty to achieve the triple aims of the Long Term Plan: better health and wellbeing, better quality healthcare and ensuring the financial sustainability of the NHS.
The LGA have long called for a shared duty of collaboration so we are pleased to see this proposal. We are keen to work with DHSC and NHSE to draw on existing collaborative planning and delivery to encourage and support all areas to escalate the scale and pace of collaboration.
The role of place
The white paper underlines the importance of ‘place’ as where joining up of care and support is most effective. Place, in most cases, will be the defined by the local authority ‘place’. ICSs will be most effective if they focus on place as their primary focus, with the recognition of the uniqueness of each place in relation to their population, geography, and history of partnership working.
Local areas will be free to develop their own place-based partnerships, between the NHS, local government and health and care services, building on existing arrangements where they are working and with NHS England and ‘other bodies’ to provide support and guidance. Health and wellbeing boards (HWBs) will continue to have a place level leadership role in driving partnerships, and producing joint strategic needs assessments and joint health and wellbeing strategy, to which ICSs will be required to have regard. HWBs and ICSs will be supported to work together to complement each other. ICSs will be required to work closely with HWBs and have regard to the joint strategic needs assessments and the joint health and wellbeing strategies within their system.
We strongly support the emphasis on place and the need for flexibility and freedom for local areas to develop their own place-based partnerships and to build on existing health and wellbeing boards and local delivery partnerships. We are keen to provide coordination information and a support offer with DHSC and NHSE for system and place leaders to develop a shared understanding of the role of place in driving forward collaboration to improve health and wellbeing.
Other proposals on how to facilitate collaboration within the NHS
In addition to ICSs, there are several other proposals to facilitate greater collaboration between NHS organisations. These are summarised below.
- A power for NHS England to set a capital spending limit for NHS Foundation Trusts, removing their financial freedom to borrow from commercial lenders and spend surpluses on capital projects. This will contribute to a new capital regime in which ICSs are allocated a system-wide capital spending limit.
- Proposals will also be brought forward to enable NHS providers and ICSs to form joint committees, which is a barrier to joint working and to allow NHS providers to from their own joint committees.
- Collaborative commissioning – There are a range of proposals to allow NHS England and ICSs to work together in different ways to commission services, similar to Section 75 arrangements, which enable local authorities and CCGs to exercise joint commissioning, lead commissioning and pooled budget arrangements.
- Joint appointments – New provisions will allow NHS bodies to make joint appointments with other NHS bodies and with local authorities to drive joint decision-making, deliver integrated care, and engender a culture of collective responsibility across organisations.
- Data sharing - There are proposals to ensure data sharing across health and care, including a requirement to share anonymised information to the benefit of the health and care system. There will be new powers for the Secretary of State for Health and Social Care to require data from all registered social care providers about all services they provide, and require data from private healthcare providers and to mandate standards for data collections and storage.
- Patient Choice – The aim of these proposals is to strengthen patient choice and control. A key proposal is to repeal section 75 of the Health and Social Care Act 2012 including the Procurement, Patient Choice and Competition Regulations 2013 to replace with a new provider selection regime, which requires bodies that arrange NHS services to protect, promote and facilitate patient choice.
These proposals remove some of major barriers to greater collaboration between NHS organisations and as such we support them. In particular, we support measures that will improve data sharing between the NHS and local government and other partners at local level. We will be keen to ensure that any new data requirements or standards do not add to the reporting burden for social care without providing a proportionate benefit, that the sector is involved in their design and, where possible, that suppliers of systems are required or encouraged to adapt their systems centrally to new standards and outputs. Any new burdens on local authorities associated with the implementation of new standards needs to fully funded.
Reducing bureaucracy
Most of the proposals in this section of the white paper are concerned with reducing bureaucracy and streamlining processes to enable joined up working within the NHS. For this reason, they are not summarised in detail in this briefing. In brief, they relate to competition with the NHS, arrangements for commissioning and providing healthcare services, adapting the national tariff so that it is not barrier to collaboration between NHS organisations, the creation of new trusts by the Secretary of State for Health and Social Care and removing the requirement for Local Education and Training Boards.
We believe that councils will need to revisit their existing procurement and commissioning governance processes to take into account the additional new process and any future reporting requirements.
The LGA will keep a watching brief on developments with regard to reducing NHS bureaucracy to assess whether they have any significance for local authorities. NHSE has published a consultation on NHS procurement.
We support proposals which reduce unnecessary and cumbersome requirements on commissioners and providers of NHS services. However, we are keen that, as far as possible, the NHS and local government commissioning and financial frameworks are aligned. The DHSC will need to ensure that any measures to reduce requirements on the NHS do not, inadvertently, create barriers to the NHS and local government partners working collaboratively. We believe that councils will need to revisit their existing procurement and commissioning governance processes to take into account the additional new process and any future reporting requirements.
Regarding the power of the Secretary of State to create new trusts, we will seek assurances from DHSC that the existing powers of local authorities are not undermined or bypassed by this new provision. DHSC will need to consider what impact this will have on the powers and duties of the NHS and local authorities in relation to the reconfiguration of NHS services. Currently, the NHS has a duty consult any local authorities that are affected by any substantial variations or reconfigurations of health services.
Enhancing public confidence and accountability
This section of the white paper is primarily focused on the NHS accountability arrangements. It includes proposals to:
- formally bring together NHS England (NHSE) and NHS Improvement into a single legal organisation
- give the Secretary of State for Health and Social Care intervention powers in relation to NHSE, in order to increase NHSE’s accountability to Parliament, and measures to strengthen and clarify the role of government and Parliament in respect of healthcare, public health and social care
- make it easier for the Secretary of State to use the NHS mandate to set more flexible objectives for NHSE
- allow the Secretary of State to intervene in local services configuration proposals ‘where required’
- a power for the Secretary of State to transfer the functions of the NHS arms-length bodies with safeguards of scrutiny if the power is used.
With regard to powers of the Secretary of State to intervene in NHS reconfigurations, we are concerned that this may undermine the existing powers and duties of local authorities on local NHS reconfigurations. We will seek assurances from the DHSC that the existing powers and duties of local government are not undermined or by-passed.
These proposals, taken together, greatly increase the power of the Secretary of State for Health and Social Care. While we appreciate the Government and Parliament’s desire for greater accountability of the NHS, we are concerned that no consideration is given to increasing local accountability of the NHS. We will be seeking assurances from Government that any new powers will not undermine local democratic accountability mechanisms.